The workers' compensation insurance carrier for appellee Griffith
Ranch, Inc. appeals a deputy commissioner's order finding that
Robert Barrett's death was compensable under Chapter 440 and
that coverage was not excluded by Section 440.09(2), Florida
Statutes (1977), as amended by Chapter 74-197, § 5, Fla.
Laws, providing:

No compensation shall be payable in respect of the disability
or death of any employee covered by the Federal Employer's Liability
Act, the Longshoremen's and Harbor Worker's Compensation Act,
or the Jones Act.

Barrett died of a heart attack triggered by an electrical shock
while he was working barefoot in the damp bilge of his employer's
44-foot, 18 ton yacht "Esmeralda," of Bahamian registration,
which lay at anchor in Marsh Harbor, Bahamas. The yacht was used
for entertainment in the employer's cattle business. Barrett's
usual work place was at Griffith Ranch in Okeechobee County,
but on this occasion, as on 25 to 50 other such occasions in
the four previous years, Barrett had been dispatched by his employer
to repair the "Esmeralda."

The question is whether Barrett was an employee covered by the
federal Jones Act, 46 U.S.C. § 688, at the time and place
of his death arising out of and in the course of his Florida
employment. If so, Section 440.09(2) apparently excludes Chapter
440 workers' compensation coverage even though, for want of proof
of employer negligence, Barrett's widow might well be denied
Jones Act
benefits.1
There is no colorable argument that Barrett was covered
by the federal Longshoremen's and Harbor Workers'
Compensation Act, 33 U.S.C. § 901, which applies only to
disability or death resulting from injury occurring "upon the
navigable waters of the United States," assuredly excluding waters
of the Bahama Islands. 33 U.S.C. § 903(a).
Cf.Hernandez v. Mike Cruz Machine Shop,
389 So.2d 1251 (Fla. 1st DCA 1980).

In years past the mutual exclusivity of State-sponsored workers'
compensation remedies and federal maritime remedies, such as
the present Jones Act remedies for seamen injured or killed as
a result of employer negligence, was the product of federal judicial
decisions protecting the maritime jurisdiction of the United
States.
SeeSouthern Pacific Co. v. Jensen,
244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1917);
City of Plantation v. Roberts,
342 So.2d 69, 75 (Fla.1976);
and
Hunt v. Basil E. Kenney Lumber Co.,
141 Fla. 842, 194 So. 366 (1940).
That exclusivity has since been judicially relaxed as the result
of various influences, notably the rather compelling realization,
aptly portrayed in Larson's informative
discussion,2
that

(I)f a gap is left between the Jones Act and state compensation
acts, the claimant may get nothing as when the widow and children
of a worker instantly killed without employer negligence find
that they have no Jones Act remedy, no maintenance and cure,
and if too strict a line is drawn, say, as to land-based "seamen"
killed on a landward errand no workmen's compensation.

The "local-concern or maritime-but-local
doctrine"3
and the "Jones Act-state compensation twilight
zone"4
are federally crafted rationales for tolerating possible
overlaps in coverages, the result of successive awards by
state and federal tribunals, in preference to tolerating
no award at all. If this case were governed solely by
those "nebulous federal constitutional doctrines which
have excused state infringement of the superior admiralty jurisdiction
of the federal government where the intrusion was not of a serious
nature,"5
we should find Chapter 440 coverage in this case for
the reasons expressed by the
Plantation
majority,
342 So.2d at 74:
Barrett and his employer contracted with reference to Florida
Chapter 440; their rights and liabilities had no direct relation
to navigation; and applying the Florida compensation law could
not materially affect any "rules of the sea whose uniformity
is essential."
Grant Smith-Porter Ship Co. v. Rohde,
257 U.S. 469, 477, 42 S. Ct. 157, 158, 66 L. Ed. 321, 325 (1922).

But the question is whether state law now avoids overlapping
coverage by sacrificing State benefits even if federal law
does not require that sacrifice. Dicta in both the majority
and the minority opinions in Plantation characterize the
1974 amendment to § 440.09(2) as an "additional step"
in that
direction,6
or as an unambiguous bar of overlapping
coverage.7
Whatever may be the correct characterization of the statutory
demarcation written in 1974, and wherever that abstract
demarcation might be drawn in a given case by some ideal
tribunal competent to decide all State and federal questions
at a single stroke, a Florida deputy commissioner, not being
such a tribunal, is not obliged to weigh the evidence of Jones
Act coverage as liberally as a federal Jones Act judge or jury
might, so to deny the Florida compensation claim. And since we
likewise are not that perfectly sighted and multijurisdictional
tribunal, we may affirm a deputy's order, given a plausible basis
for his doubting Jones Act coverage in fact, without worrying
unduly whether, were we instead a federal court, we would extend
Jones Act coverage to further the beneficial purposes of that
law.8
In other words, both the deputy and this court must be
conceptually tidy on this subject, but we needn't be perverse.
It is enough for affirmance that substantial competent evidence
supports the deputy's view of things, whether the factual issue
is Jones Act coverage or maximum medical
improvement.9

So in this case we credit the deputy's finding that Robert Barrett
was not a "seaman" for Jones Act purposes because he was not
"more or less permanently attached to the vessel."
Plantation,
342 So.2d at 72
and cases cited. The deputy here found:

The evidence shows that there were other occasions during which
Mr. Barrett had worked on the Esmeralda at the request of his
employer, both while the boat was principally docked in Fort
Lauderdale as well as when it was permanently moved and docked
in the Bahamas. These occasions were sporadic and Mr. Barrett
did only minor repairs and would make arrangements to contract
out any major repairs. The record is clear that there was no
permanent crew on the boat and that Mr. Barrett was not permanently
attached to the boat as a mate or otherwise. The record is further
clear that Mr. Barrett's primary duties were at the Ranch located
in Florida .... The claimant was clearly not a seaman for purposes
of Jones Act coverage.

Substantial competent evidence supports the Florida deputy's view
of the Jones Act issue. We find no other error. The award is

AFFIRMED.

McCORD and ERVIN, JJ., concur.

Footnotes:

1.
Our disposition of the case makes it unnecessary to inquire whether
the 1974 Florida Legislature requires the deputy commissioner
to find some plausible evidence of employer negligence before
slamming the door against a Chapter 440 claim. Interpolating
such a requirement in the state law would tend to reduce the
chances of the worker's claim falling between the two acts and
into neither. But that sort of inquiry was not required when
the jurisdictional question was the limits of federal jurisdiction
rather than, as now, the extent of the State's disclaimer.
E.g.,
City of Plantation v. Roberts,
342 So.2d 69 (Fla.1976).
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5.
So characterized by Mr. Justice England in behalf of the Plantation
dissenters who found in the "navigable waters" requirement of
the Longshoremen's Act, and in interpretative Florida Supreme
Court decisions, "a precise line of demarcation between the state
and federal spheres ...."
342 So.2d 75, 76 (dissenting opinion).
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But, apart from such one-sided cases, the best approach would
seem to be to allow the trier of fact the same kind of broad
discretion as in the longshoremen's conflicts cases, within the
broadest interpretation of the doctrine of local concern, and
with a minimum of interference by appellate courts as long as
errors of law are avoided.
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